Discovery and protective orders

Parties in litigation generally participate in a pre-trial "discovery" process, during which they exchange documents and other information about the case. Public access to these records can be quite limited, on the theory that the presumptive right of public access that accompanies other court documents does not apply to documents that are not filed with the court. The analysis can change, however, if the documents are filed in the court, although courts disagree about which discovery documents filed in court proceedings are judicial records subject to a presumption of access.

A related issue concerns the use of protective orders by the parties and the court to shield information exchanged during discovery from public inspection. Federal Rule of Civil Procedure 26 allows discovery documents to be sealed or restricted when a court finds good cause to protect a party or person from annoyance, embarrassment, or undue burden or expense, and also specifies that courts are allowed to seal documents to protect trade secrets. If a protective order is too broad, it can deprive the public of an effective understanding of the case as it proceeds.

Many courts have held that a broad protective order on the use of discovery documents does not justify the sealing of documents the parties submit to the court as part of subsequent court proceedings, such as those documents that are filed in support of a motion for summary judgment.